Jody Freeman

When President-elect Joe Biden takes office, Harvard law professor Jody Freeman says he’ll have “an awful lot of authority” with the EPA and other agencies. Despite Republican power in Congress, executive clout can get the U.S. “back on a path of dealing with climate change” by shoring up environmental protections unraveled by President Trump. As Biden’s new Climate Tsar, John Kerry can restore America’s role in the Paris Agreement, which he helped draft as President Obama’s Secretary of State.  Princeton international affairs professor Michael Oppenheimer concedes that Biden’s goal of “net zero” by 2050 doesn’t mean eliminating fossil fuels, even though that’s what it sounds like. But he and Freeman say it’ll do some good, despite “honestly motivated” criticism from climate advocates. Later on, when it comes to Trump’s famous big lie that Joe Biden stole the presidential election, Brown University politics professor Corey Brettschneider says, “I think it is extremely dangerous for a sitting president to try to undermine faith in our elections, when there's no evidence that there was any fraud.” He says U.S. Supreme Court Justice Amy Coney Barrett is part of a team with Samuel Alito, and Clarence Thomas and Neil Gorsuch that threaten Roe v. Wade, gay marriage, and the Biden White House.

President Trump’s Environmental Protection Agency was rushing to complete one of its last regulatory priorities, aiming to obstruct the creation of air- and water-pollution controls far into the future, when a senior career scientist moved to hobble it. Thomas Sinks directed the E.P.A.’s science advisory office and later managed the agency’s rules and data around research that involved people. Before his retirement in September, he decided to issue a blistering official opinion that the pending rule — which would require the agency to ignore or downgrade any medical research that does not expose its raw data — will compromise American public health...Last month, the agency finalized a rule that creates a lengthy new legal process to overturn or withdraw certain policy directives known as “guidance documents,” which give federal agencies direction on the specifics of how to enforce laws. Such guidance documents can give an administration some license to interpret laws in ways that advance their policy agenda. For example, the E.P.A. during the Trump administration has published a guidance document that allows oil and gas companies to release flares from their wells for up to 15 minutes at a time before regulations apply — a process that releases methane, a powerful planet-warming greenhouse gas...Jody Freeman, a professor of environmental law at Harvard and a former adviser to the Obama administration, called the rule a “little I.E.D.,” referring to an improvised explosive device, or roadside bomb, aimed at slowing a Biden administration’s plans to overturn Mr. Trump’s rules. “Shenanigans like these are what awaits the Biden team,” she said.

The Trump administration rolled back over 125 environmental rules during their tenure. These policies protected wildlife and water, and regulated chemicals and greenhouse gases. This hour, we’ll discuss Trump’s environmental and climate legacy. We’ll also look at President-elect Biden’s climate plans and discuss what actions he can take (with or without a democratic Senate) to protect the environment, address our energy needs, and tackle global warming. Joining us are Michael Mann, professor and director of Penn State’s Earth System Science Center, and Jody Freeman, director of the Environmental and Energy Law Program at Harvard University.

Climate activists have set a high bar for President-elect Joe Biden's staff picks, asking that he exclude anyone with ties to fossil fuel industries. They've already been disappointed. Biden faced backlash this week after naming Louisiana Rep. Cedric Richmond to lead the Office of Public Engagement. Varshini Prakash, executive director of the Sunrise Movement, said it "feels like a betrayal" because Richmond "has taken more donations from the fossil fuel industry during his Congressional career than nearly any other Democrat." The oil and gas industry has been among Richmond's top campaign contributors over his career in Congress, according to Center for Responsive Politics...Among the names on the Biden transition's agency review teams a few have limited ties to fossil fuel, but more are from environmental groups. "When I look at that list I think the clear message is the Biden team wants good people in place, right from the start, who have experience in these agencies and are not wasting any time," says Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She was a former counselor on energy and climate change in the Obama White House. Freeman is a good example of those who could be excluded if a Biden administration rejected people connected to fossil fuel companies. She sits on the board of oil company Conoco-Phillips, but she also led Obama's effort to double car fuel-efficiency standards. Freeman is also an expert on using presidential powers to address climate change, knowledge that likely will be necessary if both parties can't agree on new climate legislation when Biden is sworn in next year.

What can President-Elect Biden do to reverse course on the environment and climate change? What can he accomplish with a Republican-controlled US Senate, pending results of two runoff elections in Georgia? What can he pursue in the executive branch? And how will the left wing of the Democratic Party play into his plans? For our podcast, Trump on Earth, Reid Frazier unpacks all of this with Jody Freeman, law professor and director of the Environmental and Energy Law Program at Harvard Law School. Before that she worked for the Obama EPA, where she helped write fuel efficiency regulations for cars, which were later rolled back under President Trump.

President-elect Joseph R. Biden Jr. will use the next four years to try to restore the environmental policies that his predecessor has methodically blown up, but the damage done by the greenhouse gas pollution unleashed by President Trump’s rollbacks may prove to be one of the most profound legacies of his single term. Most of Mr. Trump’s environmental policies, which erased or loosened nearly 100 rules and regulations on pollution in the air, water and atmosphere, can be reversed, though not immediately. Pollutants like industrial soot and chemicals can have lasting health effects, especially in minority communities where they are often concentrated. But air quality and water clarity can be restored once emissions are put back under control. That is not true for the global climate. Greenhouse pollution accumulates in the atmosphere, so the heat-trapping gases emitted as a result of loosened regulations will remain for decades, regardless of changes in policy. “Historically, there is always a pendulum to swing back and forth between Democratic and Republican administrations on the environment, and, theoretically, the environment can recover,” said Jody Freeman, a professor of environmental law at Harvard and a former adviser to the Obama administration. “You can put rules back in place that clean up the air and water. But climate change doesn’t work like that.” Moreover, Mr. Trump’s rollbacks of emissions policies have come at a critical moment: Over the past four years, the global level of greenhouse gases in the atmosphere crossed a long-feared threshold of atmospheric concentration. Now, many of the most damaging effects of climate change, including rising sea levels, deadlier storms, and more devastating heat, droughts and wildfires, are irreversible.

The EPA and Interior Department under President-elect Joe Biden will have a range of tools at their disposal to start undoing President Donald Trump’s deregulatory agenda on the environment, according to former agency officials, lawyers, and environmentalists. Many of the administration’s more ambitious environmental goals, such as reviving regulations on climate pollutants from power plants and automobiles, will take longer to change or put into place. But most observers expect Biden’s team to get working immediately after inauguration on smaller measures, such as the “secret science” rule that would block the EPA from using scientific research that isn’t or can’t be made public. “They’ll be starting right out of the gate,” predicted Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. But some who support Trump’s rollbacks warn that Biden will pay for being too ambitious in efforts to reverse them... One of the fastest and easiest actions the environmental agencies can take is to strike down Trump-era guidance that the Biden team disagrees with, said Sam Sankar, senior vice president for programs at Earthjustice. “That can be done with the stroke of a pen,” Sankar said. Dozens of such guidance documents are now on the books. Among the candidates for immediate rescission is an October memo from the Environmental Protection Agency, arguing that the Clean Air Act gives states flexibility to administer air pollution requirements and saying some exemptions are appropriate, Sankar said.

An article by Jody Freeman: Amy Coney Barrett’s likely confirmation to the Supreme Court to replace the late Ruth Bader Ginsburg in a Monday Senate vote will add a conservative sixth vote to an already-conservative majority, with potentially far-reaching implications for American law. Barrett’s confirmation will scramble the current distribution of power on the Court, displacing the chief justice as its putative center and pulling it rightward. Most legal commentators expect that Barrett’s judicial philosophy of originalism and her advocacy of a more “flexible” approach to precedent will make her more likely to vote to overturn precedents like Roe v. Wade. Barrett also believes that judges should interpret statutes in accord with their “original public meaning,” a strict brand of textualism that tends to constrain agency regulatory power. What can we predict about Barrett’s likely attitude toward environmental regulation, and climate change in particular? Would she vote to overturn Massachusetts v. EPA, the Court’s 2007 landmark holding that the Environmental Protection Agency may regulate greenhouse gases under the Clean Air Act? Would she vote to uphold the Trump administration’s rescission of the Obama-era greenhouse gas standards for the power sector, and its ambitious greenhouse gas and fuel efficiency standards for cars, and uphold the administration’s far weaker rules? What of the administration’s legal theory that when setting power plant standards, EPA cannot consider grid-wide strategies like substituting natural gas for coal, even though Congress told the agency to use the “best system” of emission reduction? Or the administration’s theory that federal law preempts California from setting its own vehicle greenhouse gas standards, and, separately, that EPA can revoke California’s current waiver to set those standards? Would it be more difficult for a new Biden administration to adopt ambitious greenhouse gas rules with Barrett on the Court?

Even as California aspires to a more sustainable, climate-friendly economy, the environmental degradation Bahram Fazeli witnesses daily is an unwelcome reminder of how much the state is held back by a federal government pushing in the other direction. The oil wells, refineries, metal-finishing businesses and hazardous waste facilities in Wilmington and Huntington Park, where the environmental activist works, leave residents of those primarily Latino communities acutely exposed to health risks. Fazeli has lost patience with the pace of change...That urgency gives the state a particularly large stake in the outcome of an election that poses a drastic contrast on climate issues — a White House steeped in climate denial and closely allied with fossil fuel companies versus a Democratic candidate who has embraced a $2-trillion climate plan that would rely heavily on California innovation and ambition as a template for fighting global warming across the country. The Trump administration has spent billions of dollars in an almost entirely unsuccessful effort to prop up the nation’s coal industry and has given priority to coal and oil production over renewable sources. The administration’s policies have put the economic interests of regions heavily dependent on coal and oil production ahead of states like California. Biden would largely reverse that. California’s senior elected officials — all Democrats — believe Biden’s election would unleash a flurry of initiatives in the state designed to reshape the energy and transportation sectors and shift money to low-income communities suffering the most from pollution caused by fossil fuels. “It would be going from pushing a rock up a mountain to running downhill with the wind at your back,” said Jody Freeman, who was President Obama’s advisor on climate change and now directs the environmental law program at Harvard.

In this episode—the second in our ongoing “Big Decisions” spin-off series—guest host and chair of the RFF Board of Directors Sue Tierney talks with Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School, and Jeffrey Holmstead, a former assistant administrator at the US Environmental Protection Agency. Both guests this week reflect on their experiences working on environmental policy during the hectic early years of a new presidential administration and discuss upcoming challenges for either a Biden presidency or another Trump term as the pandemic persists, global economic woes continue, and climate change intensifies. While Freeman has concerns that confirming Amy Coney Barrett to the Supreme Court could reduce the authority of environmental regulators, Holmstead contends that the court’s conservative turn could be an opportunity for Congress to take the lead in pursuing ambitious energy legislation again.

Environmental law likely won't get the same attention as abortion or health care at next week's Senate hearings for Supreme Court nominee Amy Coney Barrett. But her confirmation, tilting the already-conservative court even further to the right, could have a major impact on the government's ability to address climate change. Nearly all of President Trump's climate rollbacks have been challenged, and several are likely headed to the high court. And some conservative allies with ties to the fossil fuel industry say they'd like to relitigate a key decision that underpins climate regulations. It's difficult to predict how Barrett would rule on specific cases. Environmental law was not her focus as a professor, and not something she dealt with a lot during her time on the U.S. Court of Appeals for the Seventh Circuit...Barrett's judicial philosophy shows skepticism of government and favors deregulation over regulation, according to Jody Freeman, who directs the Environmental and Energy Law Program at Harvard Law School and also served in the Obama administration. "I think, generally speaking, it's going to be a corporate court — good for business, good for corporations," says Freeman. Barrett is skeptical of federal agencies stretching their authority under laws where Congress hasn't given them clear direction, but Freeman says agencies need flexibility. "Even when Congress passes new laws there are always ambiguities," she says. "There always is new science, new understandings, new risks, new problems, new data. And it's impossible to specify each and every small decision that the agencies make."

Trump's nomination of Amy Coney Barrett, a Circuit Court judge with strong support from conservatives, could spell trouble for landmark judicial holdings about climate change, Pro's Alex Guillén reports. Barrett is considered an "originalist" in the mold of late Justice Antonin Scalia, for whom she clerked in the late 1990s. She has long advocated for the Supreme Court to show more flexibility in overturning past precedents. That could apply to the high court's 2007 ruling in Massachusetts v. EPA that said the Clean Air Act gave EPA the authority to regulate greenhouse gases, Alex reports. At least two justices still on the court have signaled interest in revisiting the climate ruling — Justices Samuel Alito and Clarence Thomas — and other members of the court's conservative wing may also be sympathetic to arguments to reconsider the decision. With a more conservative judge such as Barrett, the court could weaken Massachusetts without overturning it, said Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program and a former Obama White House adviser. That could include "interpreting provisions to require additional cost benefit analysis, taking a limited approach to the 'co-benefits' that come with climate rules, and otherwise making it harder for the agency to regulate greenhouse gases and other pollution," she said in an email. No case has yet advanced far enough for a court to take a position on the scope of EPA’s authority, but if Trump is reelected, that could provide such an opening.

With Judge Amy Coney Barrett poised to become the sixth Republican-nominated justice on the nation’s highest bench, environmental law experts see her influence tipping the scales on energy and climate rules. President Trump tapped Barrett on Saturday, and Trump—with the help of a Republican-led Senate—is intent on swiftly filling the position left by the late Justice Ruth Bader Ginsburg, who was nominated in 1993 by President Clinton, a Democrat (Greenwire, Sept. 26). Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals, has a relatively slim record on climate and environmental matters. But if she is confirmed to the high court, Barrett, 48, likely would lock up a conservative coalition there, legal experts said. That bloc could smooth the path for future environmental rollbacks or make it more difficult to expand emissions regulations through a broad reading of statutory authority. “I view Barrett being added to the court as taking it even further in the direction it was already going,” said Jody Freeman, founding director of the Environmental and Energy Law Program at Harvard Law School. The court “was already headed in the direction of [being] much more skeptical of broad efforts to regulate new problems, to interpret statutes that may be older, to deal with new risks,” she added...That momentum could be a boon for Trump’s legacy of relaxing environmental standards, as a conservative high court likely would be more amenable to his viewpoint in legal challenges to those efforts. Trump has pushed to roll back regulations on vehicle, power plant and industry emissions.

It’s a bedrock court case on climate change. Now it has a bull's eye on its back. The death of Ruth Bader Ginsburg may eventually result in a reassessment — or at least, a narrower reading — of the Supreme Court’s first and most important ruling on rising global temperatures. The landmark 2007 decision, called Massachusetts vs. Environmental Protection Agency, gave the federal government the power to regulate greenhouse gas emissions. Now with President Trump poised to add a sixth conservative justice, some conservatives are itching for the high court to take some of that power away. The question is whether the Supreme Court will take up future cases tackling climate change — and how far a more conservative bench will go to chip away at its past decision...Toward the beginning of the George W. Bush administration, Massachusetts led 11 other states in petitioning the EPA to do more to stop global warming. When the agency refused, the states sued to compel it to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act. In a 5-to-4 decision, the high court sided with the states and said greenhouse gases ought to be considered air pollutants if agency scientists determine they are a threat to human health. President Barack Obama’s EPA went on to make that so-called “endangerment finding” in 2009...The court could take other steps, such as reining in the EPA’s jurisdiction or requiring additional cost-benefit analysis from the agency to justify its climate rules, according to Jody Freeman, a scholar of administrative law and environmental law at Harvard. The court, she said, has already “signaled it is open to doing” that.

U.S. Supreme Court Justice Ruth Bader Ginsburg will be best remembered for her fierce support of gender equality and civil rights, but she made her mark on environmental law as well, authoring opinions that established citizens' right to sue polluters under the Clean Water Act and the government's right to regulate cross-state air pollution. Justice Ginsburg wasn't necessarily a leader on the high court in regard to environmental law, but green groups knew that she would be a sympathetic ear and a fairly reliable vote, according to Jody Freeman, a professor at Harvard Law School and director of its Environmental and Energy Law Program. "She appreciated the challenges agencies like EPA face when trying to execute their duties," Freeman said, referring to the U.S. Environmental Protection Agency. "She read statutes with an eye to their purpose, and she respected agency expertise." Timothy Bishop, a partner at Mayer Brown LLP, said that although Justice Ginsburg didn't take the lead on many environmental cases, she reliably recognized the government's right to regulate on environmental issues. He cited Massachusetts v. U.S. Environmental Protection Agency , which established carbon dioxide as a pollutant eligible for federal regulation, and Rapanos v. EPA , in which the court's four liberal justices took a broad view of the government's regulatory authority under the Clean Water Act. "Her environmental record is fairly slim for so long a tenure in the court, and you do not get the impression that she had the passion for environmental issues that, say, Justice [John Paul] Stevens had, compared to her record on civil rights issues, on which her liberal icon status is based," Bishop said Here are three of the most important environmental law opinions Justice Ginsburg authored.

A more conservative Supreme Court gives the Trump administration a greater chance of making its rollbacks of environmental rules last long after the president leaves office. The death of Justice Ruth Bader Ginsburg could have a profound effect on a number of legal challenges brought against President Trump and his deputies now winding their way through lower courts, legal experts say. Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to  if the federal government can take aggressive action to curb climate change — could be impacted. And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change. “A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program...A Biden administration, along with Democrats in Congress, will need to craft new environmental laws and regulations extra carefully so as not to run afoul of a more conservative Supreme Court, Freeman said. “All of this underscores the need to use executive power smartly and strategically in a legally defensible way in tandem with passing new legislation on climate and energy policy," she said.

A new Supreme Court appointment at the twilight of President Trump's first term could shift how justices respond to regulatory challenges and dull Chief Justice John Roberts' swing vote in cases with important energy and environmental consequences. And if Trump loses in November, it could complicate Biden administration efforts to address climate change and make it tougher to roll back Trump's deregulatory agenda. Court watchers expect Trump's nominee to replace Justice Ruth Bader Ginsburg, who died Friday at age 87, to fall ideologically to Roberts' right. That could alter how the court handles administrative law, which governs federal agency actions and can be a key component of regulatory cases...The White House Council on Environmental Quality's new implementing regulations for a foundational environmental law may also find their way to the Supreme Court. The rules are being challenged in part for allegedly diverging too far from the bedrock National Environmental Policy Act. Conservatives have long challenged how much courts should defer to agency interpretations of NEPA. While Roberts has shown an interest in limiting the scope of that deference — known as Chevron deference — a more conservative justice may want to do away with it entirely, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She noted that there has been a "certain instability" in recent major administrative law cases where a single vote could have tilted the outcome. "In many of these big cases, [Roberts] is like a surgeon, wielding the scalpel carefully to achieve his desired outcome, but also doing so carefully to limit collateral damage. He is not looking for upheaval," said Freeman in an email. "A new conservative justice may not be as cautious or as concerned about ripple effects." For example, the high court earlier this year also took aim at independent agencies when it struck down the structure of the Consumer Financial Protection Bureau. With an additional conservative vote, the court might have been persuaded to go further and find that all independent agencies are unconstitutional, said Freeman.

As the coronavirus pandemic continues to wreak havoc worldwide, another looming threat remains on the back burner: the global climate crisis. Climate change has been a hot topic and polarizing issue for decades, with debates over its validity and level of seriousness more political than scientific. But the science is clear: Earth is getting hotter and its inhabitants are largely to blame. The warmer world is already provoking an increased number of extreme weather events, causing negative health impacts and obligating people to flee their homes. Experts say failure to take considerable action will have devastating consequences. What evidence do we have that the world is changing for the worse? What effects are we seeing now in 2020 and what more is predicted? Who and what are the biggest contributors? What is the status of environmental regulations and policies? What more has been proposed? Is there time to reverse concerning trends? What would be the biggest challenges? What’s at risk if we don’t? Guests: Jody Freeman, professor of law and founding director of the Environmental and Energy Law Program at Harvard University; Abrahm Lustgarten, senior environmental reporter for ProPublica; Jason Smerdon, research professor, co-director of the sustainable development undergraduate program and faculty member of the Earth Institute at Columbia University.

CGTN's Sean Callebs spoke with Jody Freeman, Professor of Law and Director of the Environmental and Energy Law Program at Harvard Law School about California's clean truck and other environmental initiatives.

Donald Trump has smashed a lot of environmental china in four years. To name a few instances: he pulled out of the 2015 Paris Agreement (a move that becomes official on July 6, 2021); loosened automotive-mileage and power-plant-emission standards; and sought to eliminate the protected status of the sage grouse, opening up 9 million acres to oil and gas extraction. Reasonable minds may differ on the wisdom of any one of those moves, but no one can deny the unprecedented sweep of Trump’s policies. Data from Harvard Law School’s Environmental and Energy Law Program and Columbia University’s Sabin Center for Climate Change Law show that the President has signed more than 100 administrative rules, Executive Orders and acts of deregulation, 66 of which have gone into effect...It wouldn’t necessarily be easy. The U.S. would not simply be permitted to rejoin the agreement but would have to negotiate its way back in. One way to improve its chances would be for the U.S. to present an even more ambitious greenhouse-gas reduction target than it had before, says Joseph Goffman, the Harvard program’s executive director. That original target for the U.S. was a cut of 26% to 28% below 2005-level carbon emissions by 2025. If Biden agreed to more, he might win the U.S. the favor of the other 196 signatories to the pact, but then he would have to deliver; that’s where the work on the domestic side would begin...If presumptive Democratic presidential nominee Joe Biden defeats Trump in November, what could he do in his own four years to undo the work of the Trump era? “The biggest, flashiest thing would be for Biden to stand up on day one and say the U.S. is recommitting itself to Paris,” says Jody Freeman, director of the Harvard program. “We should make clear we’re going to take back the reins we’ve relinquished.”

Joe Biden has been wooing progressives with a list of green initiatives. But even if Democrats take control of Congress, he might have to rely on executive actions to accomplish some of his goals. The presumptive Democratic nominee for president has a $1.7 trillion climate plan that includes myriad proposals — including new regulations on car fuel efficiency, massive increases in government spending, additional taxes on greenhouse gas emissions and rejoining the Paris Agreement. But experts and advocates say Biden would likely have to adjust some of his expectations if Congress can't help, and he may not be able to achieve, for example, net-zero greenhouse gas emissions by 2050. Still, should he win in November, the former vice president would have a wide range of tools at his disposal to make big changes to climate and environmental policy. "When you've got the agencies of the federal government, and you've got the power to steer and direct and appoint, that's a huge power," said Jody Freeman, who leads the Environmental and Energy Law Program at Harvard Law School and was an environmental policy adviser in the Obama administration. "So I see what Biden could do as quite significant, even though we all think it would be pretty fabulous if Congress could do something," she said...And if Biden doesn't get any help from Congress, he might want to double down on regulations and go even further. "It's not that you have to go find other tools in the executive branch. You have to use the regulatory tools you've got to do more," said Freeman. She argued specifically that Biden could write a new version of the Clean Power Plan far more ambitious than the one the Obama administration put forward in 2015, which would have cut emissions 32% below 2005 levels by 2030. Since then, many coal-fired power plants have been shut down, renewable power has become much cheaper, and the sector's emissions have dropped, showing it's possible to do much more, she said. "You can be ambitious with a new version of the Clean Power Plan because the sector itself has made progress, and the market forces are already driving us in that direction, with the cheap cost of natural gas, the penetration of renewables and the rest," she said.